By Sri. MOHANDASAN.K, PRESIDENT
1.The complaint in short is as follows: -
The complainant was feeling pain to heel and he was taken to the opposite parties hospital on 26/08/2015 and treated there. The first opposite party examined the complainant and directed the complainant to take X-ray of the heel and after verifying the same he said that there is fracture to the heel and his leg was plastered. The first opposite party prescribed certain medicines also. While the opposite party said to the complainant that there is fracture to heel, the complainant said that the pain is to his nerve, but the opposite party did not heed to his words. The complainant remitted required consultation fee and token was also issued to him. The complainant was under the treatment of the first opposite party and as per his instruction the leg was plastered. But the complainant did not feel heeling of pain and so he approached at Al-shifa hospital, Perintalmanna and from there it was said that there is no fracture to bone and the complaint is only to nerve. As per the instruction from the Perintalmanna hospital, he consulted from Neuro Department. Thereafter for the convenience of treatment the complaint approached at Nila hospital, Pattambi and he was treated therefore “TENDO -ACHILLES -CLOSE – RUPTURE. “
2. The complainant alleges that, he approached the opposite party, but the opposite party did not provide proper service, care and treatment. Complainant alleged deficiency and wilful default on the part of the opposite parties. The act of the opposite party caused much hardships and inconvenience to the complainant. The complainant had to spend Rs.50,000/-for the treatments. He also met nearly Rs.15,000/- for medicine. Complainant claims that he incurred more than Rs.25,000/-for transportation. Due to the defective service, the complainant could not go for his work for more than o
one year. The complainant claims Rs.60,000/-towards loss of earnings. The complainant
also claims Rs. 1,50,000/- on account of mental agony, pain and sufferings.
3. The complainant caused legal notice to the opposite party on 14/01/2016, but the opposite parties sent reply stating falsehood. The complainant alleges deficiency of service on the part of the opposite parties and so to allow the complaint as prayed.
4. On admission of the complaint notice was issued to the opposite party and on receipt of notice opposite party did not turn up, and so an exparte order was passed on 31/10/2016 in the matter. Subsequently the opposite party here in preferred appeal as 213/2017 before the Hon’ble State Consumer Disputes Redressal Commission and as per the order the exparte order of the District Forum was set aside and the matter remanded for fresh disposal after giving opportunity to the appellants/opposite parties to file version and to adduce evidence if any. Thereafter on receipt of records from the State Commission, notice was issued to the parties and first opposite party entered appearance and filed version. The second opposite party not turned up and so remained exparte.
5. The first opposite party filed version denying the entire averments and allegations in the complaint and prayed for the dismissal of the complaint with cost of the opposite party. The submission of the opposite party is that the complaint is ill framed, ill-advised and filed solely for the undue financial advantage of the complainant. The first opposite party submitted that the complainant came before the first opposite party in the orthopaedic outpatient department walking himself on 26/08/2015 with complaints of pain, swelling and oedema of right ankle joint. As per clinical history he had a trivial trauma involving right ankle joint few days ago. On examination it was found severe tenderness over calcanium oedema of ankle joint. X-ray was taken which did not reveal any bony injury and on further examination there was no external wound or bleeding injury. No sulkies or depression is noticed in the line of Achilles tendon and Thompson test was found to be negative. It was done for evaluation of the integrity of the Achilles tendon and the result proved there was no Achilles tendon rupture at that time. The complainant was aged about 60 years and so conservative management was advised on a diagnosis of soft tissue injury of ankle joint with massive oedema joint. The complainant was informed about the examination and investigation findings and specifically told that there was no bony injury as per X-ray. The first opposite party suggested POP application in normal position to relieve pain and oedema. Complainant agreed treatment with POP application fully knowing that this method of treatment was for pain relief and settling oedema. The opposite party submitted that he adopted standard and accepted treatment procedure for the diagnosis condition of ankle joint in view of old age of the complainant. As Thompson test was found negative there was no indication for surgical intervention and conservative management with application in normal position was strictly in accordance with accepted treatment protocol. The first opposite party under all care and aseptic precautions put POP cast for immobilisation and prescribed medicines for immediate medical management required for the diagnosed condition. The complainant was advised total bed rest and not allowed to walk. During review consultations the complainant did not report any symptoms to suspects tendon injury and advised to continue same line of management with medication.
6. The opposite party contented that he had attended and treated the complainant with reasonable degree of skill and care and the diagnosis was made on proper investigations and clinical correlations. The conservative line of management followed by first opposite party for pain, oedema and of ankle joint was perfectly in accordance with standard and accepted treatment protocol. The opposite party submitted that the alleged condition of the Tendo-Achilles close rupture might have been a later development caused due factors beyond the control of the opposite party probably due to inadequacy in following proper medical advice. There was absolutely no inadequacy in following proper medical advice. The opposite party contended that there was absolutely no negligence or deficiency in service on the part of the first opposite party at any point of time in the treatment of the complainant and so not liable to compensate him either jointly or severally.
7. The opposite party specifically denied that, he told after taking X-ray that there is fracture and so applied POP. It was obvious from X-ray that there was no bony injury and a senior orthopaedic surgeon, the first opposite party never made any such findings based on the said X-ray. The opposite party also denied that he did not heed to the complainant’s words that he had pain on tendon is misleading. The opposite party specifically contended that he conducted Thompson test and was found negative. The diagnosis and treatment of the first opposite party was proper and adequate for the injury caused to the complainant at that time. It is submitted that negligence cannot be attributed against doctor simply because achilles closed rupture was found out later and required further treatment.
8. The opposite party also denied the allegations of negligence, carelessness, dereliction of duty and deficiency in service. It is also denied the claim of the complainant on various heads and loss of income through detaining from attending job. The submission of the opposite party is that claim amount as compensation is highly exorbitant, exaggerated and without any substance. The opposite party submitted that there is no cause of action as stated in the complaint against first opposite party and he is having qualification of BSc,MBBS, D. Ortho with experience of 30 years as a consultant Orthopaedic Surgeon and so complaint is liable to be dismissed with cost to the opposite party.
9. The complainant and first opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A5. Ext. A1 is prescription series issued by first opposite party. Ext. A2 is prescription issued from Al-shifa hospital Perintalmanna dated 21/10/2015. Ext. A3 is Discharge summary issued by Nila hospital, Pattambi dated 17/11/2015. Ext. A4 is reply notice issued by opposite party No.1 to Adv. V. Rajesh. Ext. A5 is lawyer notice issued by Adv. V Rajesh on behalf of complainant dated 14/01/2016. Opposite parties did not file documents. The complainant was examined as PW1.
10. Heard complainant and opposite parties, perused affidavit and documents. Complainant and first opposite party also filed argument notes. The following points arise for consideration: -
- Whether there is deficiency in services on the part of the opposite parties?
- Relief and costs.
11. The specific allegation of the complainant is due to pain to his right leg; he was taken to first opposite party and on taking X-ray the doctor told the complainant that there is fracture on his right leg and there after applied POP. But subsequently complainant approached at “Al-shifa hospital and also at Nila hospital Pattambi. The complainant came to know from the subsequent consultation that there was no fracture to heel as stated by the first opposite party and so he underwent treatment at Nila hospital for Tendon Achilles close rupture. So, the allegation is that the first opposite party negligently and wrongly examined the complainant and stated that leg has fractured and did not provide proper treatment in time and treated his leg with plaster cast which was actually not necessary.
12. The opposite party submitted that, the complainant approached the first opposite party in the orthopaedic department by walking himself on 26/08/2015 with complaints of pain, swelling and oedema of right ankle joint. As per clinical history he had a trivial trauma involving right ankle joint few days back. On examination it was found severe tenderness over calcaneus, oedema of ankle joint. X-ray was taken which did not reveal any bone injury and on further examination there was even no external wound or bleeding injury. It is also noted that no wedge or depression noticed in the line of Achilles tendon and Thompson test was also found negative. The first opposite party evaluated the integrity of the Achilles tendon and the result showed that there was no Achilles tendon rupture at that time. The complainant was 60 years old person and so conservative management was advised. On examination it was also found that it was soft tissue injury of ankle joint with massive oedema of joint. The opposite party specifically contended that the result of examination and investigation findings were informed to the complainant and it had specifically told that there was no fracture injury as per X-ray taken. The first opposite party suggested POP application in normal position to relieve pain and oedema. Thus, the contention of opposite party is that he adopted standard and accepted treatment procedure for the diagnosed condition of the ankle joint in view of old age of the complainant. The application of the POP slab for immobilization and prescribed medicines for immediate medical management was the proper procedure required for the diagnosed condition. It was also advised complete bed rest and also not to walk.
13. So the question is whether there was revealing of fracture by the first opposite party on verification of X-ray and whether the procedure adopted by the first opposite party was correct or not. It can be seen that the complainant produced Ext. A1 series to show the treatment and medicines prescribed by the first opposite party. It can be seen that application of POP was evident from the Ext. A1, but no indication of fracture to the heel as contented by the complainant. In the absence of documentary averments regarding the fracture, we cannot accept the contention of the complainant that the first opposite party said to him that there was fracture to his heel. The opposite party has stated that, he has given the treatment for the diagnosed condition of the complainant. The opposite party submitted that he could not diagnose Achilles tendon close rupture and that might have been a later development caused due factors beyond the control of the first opposite party. It is also submitted that the first opposite party that it may be due to the lapse or lack in following the medical advice given by the first opposite party properly.
14. The case of the complainant being a medical negligence it is well settled that there should be a specific case of negligence and that to be proved through expert evidence. In this complaint the complainant has not brought out a specific case of negligence except the allegation of revealing fracture to heel which was not actually there. The document also does not support the allegation of the complainant. The submission of complainant that during subsequent treatment period, the concerned physicians said that there was no fracture to the complainant is not sufficient to hold the opposite party had said that the complainant sustained fracture to heel. But he has no case that any of the treated doctors said to him that there was violation of medical protocol from the side of the first opposite party. The complainant has not taken any attempt to examine an expert to prove his case. So, we cannot find deficiency in service on the part of opposite parties or the negligence in treatment provided by the opposite parties. In the absence of evidence, we do not find any merit in the complaint and so we dismiss this complaint. The first opposite party is allowed to get released the deposited amount from the Commission as part of filing appeal on proper application.
Dated this 20th day of October, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : PW1
PW1: Complainant (Muhammed T.P)
Documents marked on the side of the complainant : Ext.A1to A5
Ext. A1 : Prescription series issued by first opposite party.
Ext.A2 : Prescription issued from Al-shifa hospital Perintalmanna dated 21/10/2015.
Ext.A3 :Discharge summary issued by Nila hospital, Pattambi dated 17/11/2015.
Ext.A4 : Reply notice issued by oppositepartyNo.1 to Adv. V. Rajesh.
Ext.A5 : Lawyer notice issued by Adv. V Rajesh on behalf of complainant dated
14/01/2016.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER